Last year, FBI Director James Comey floated a ridiculous idea that retweeting ISIS tweets could be seen as "material support" for terrorism. Indeed, an American teenager got sentenced to 11 years in jail for pro-ISIS tweets, with the "material support" being that some of those tweets linked to pages that taught people how to use Bitcoin. Some have taken this idea even further, and argued that internet companies can be slapped with "material support for terrorism" claims or charges if they let ISIS members or other terrorists make use of their services.
This is ridiculous for many, many reasons, not the least of which is that (like in the encryption debate) it seems to presume that there's some algorithm to magically determine who is good (not a terrorist) and who is bad (terrorist!). And just like ridiculous and impossible arguments for "kicking ISIS off the open web" -- it would be ridiculously counterproductive. Not only would it be ridiculously costly to internet companies, but it would actually take away a major source of intelligence about terrorist groups, since they often reveal useful things on social media.
But guess who's seriously thinking about looking to see if it's possible to slap "material support of terrorism" charges on internet companies? Why, it's a Senator who actually is supposed to be representing many of their interests as California companies, Senator Dianne Feinstein. Jenna McLaughlin, a national security reporter for The Intercept, noted that Feinstein floated the idea this week, as if Feinstein had just thought of it:
DiFi: have we tried slapping material support charges on companies for letting terrorists use their services?
We've already discussed how dumb an idea this is (even more so that it comes from a California Senator), but ACLU deputy legal director Jameel Jaffer had an excellent response as well, highlighting the sheer stupidity of Feinstein's suggestion:
I heard that terrorists use hotels, credit cards, and phones, too. We're going to need a lot of indictments. https://t.co/N6HsYIz2Tb
A few weeks ago, Donald Trump's spokesperson claimed that he had "single-handedly brought back free speech." It was an odd thing to say for a variety of reasons. First, the US has really strong free speech protections and they haven't gone away (even if there are some threats to them). That is, free speech doesn't need to be "brought back" because it's already here. Second, Trump himself, just a few weeks earlier was quoted deliberately mocking free speech, claiming that people who support it are "foolish people." And then, of course, there's the fact that Trump has a very, very long and detailed history of both threatening to sue, and actually suing, over the speech of others. As Walter Olson noted:
Donald Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career. He dragged reporter Tim O’Brien through years of litigation over a relatively favorable Trump biography that assigned a lower valuation to his net worth than he thought it should have. He sued the Chicago Tribune’s architecture critic over a piece arguing that a planned Trump skyscraper in lower Manhattan would be “one of the silliest things” that could be built in the city. He used the threat of litigation to get an investment firm to fire an analyst who correctly predicted that the Taj Mahal casino would not be a financial success. He sued comedian Bill Maher over a joke.
That first case is instructive. I highly recommend reading the details. O'Brien wrote a biography of Trump which was mostly favorable to Trump, but which briefly mentioned that he might only be worth hundreds of millions of dollars, rather than billions, and Trump sued him over that claim. And as that link notes, Trump didn't just lose, he was "humiliated" by the courts. Incredibly, Trump still seems to insist that he "won" the case by basically redefining having the case totally tossed out of the courts as winning:
@julesmattsson Wrong, totally proved my case but didn't get damages because the libel laws in this Country suck!
And that leaves out plenty of other threats, such as threatening to sue Rosie O'Donnell for mocking him, threatening to sue competitor Ted Cruz for challenging his political views or actually suing Univision claiming that because its President of Programming posted an Instagram picture showing Trump next to Charleston, South Carolina, shooter Dylann Roof, with the text "No comments," that was somehow "defamatory." That lawsuit was just settled a few weeks ago, which is interesting because, as John Oliver recently noted, Trump insists he refuses to settle lawsuits.
Anyway, last Friday Trump made even more news, saying that if he wins he's planning to "open up" libel laws to make it even easier to sue. Given his statement in the Tweet above about how he won... except for what libel laws actually say, it's not surprising that he wants to change such laws.
Here are the key points. After talking about how he hates the Washington Post, and thinks Jeff Bezos just bought it for political influence, he notes:
If I become President, oh, are they going to have problems. They're going to have such problems.
... One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.
.... So we're going to open up those libel laws, folks, and we're going to have people sue you like you've never got sued before...
That last line is said pointing to the media. Trump followed that up by extolling the virtues of libel law in the UK, which is famous for how horrible they are and how they're abused to silence speech around the globe.
Well, in England, I can tell you, it's very much different and very much easier. I think it's very unfair when the New York Times can write a story that they know is false, that they virtually told me they know it's false, and I say, why don't you pull the story, and they say, we're not going to do that, because they can't basically be sued. And you can't be sued because can you say anything you want, and that's not fair.
Of course, as Politifact noted, Trump is flat out wrong (shocker there) in saying that the NY Times can't be sued if it knowingly publishes a false story. That is, in fact, the standard necessary for defamation in this country.
Many others rushed in to point out something that seemed even more fundamental, which is that libel law is based entirely on state, rather than federal, statutes leading some, like Mathew Ingram at Fortune, to claim that Trump really can't do much to carry out those threats. Indeed, many commentators are treating Trump's confusion over the difference between state and federal laws (and his apparent confusion over key First Amendment precedents that would mean even if it were a federal issue, he couldn't just change the law the way he wanted to) as yet another example of Trump being ridiculously clueless on policy matters he's discussing.
And, of course, it is true that Trump appears to not understand NY Times v. Sullivan, one of the most important cases on the intersection of defamation and the First Amendment, which found that for public figures there is tremendous leeway in allowing speech, such that it is only defamatory if statements are not only false, but made with "actual malice." Trump, obviously, doesn't like this, but seems to think you can just "open up" the law, ignoring that the issue is not the law, but the 1st Amendment of the Constitution and First Amendment precedent.
That said, this is not a situation where you can just wave this off and say, "Oh, clueless Trump, he can't really impact free speech like that." As Marc Randazza explains in a CNN story, Trump can actually still create tremendous damage to the First Amendment if he were to become President. First off, you may have noticed that there's a vacancy on the Supreme Court, and a Senate insisting it won't look at any nominees until the next President comes into office. If that's the case, then it's entirely possible Trump could appoint someone willing to overturn NYT v. Sullivan. That might be difficult to do with the rest of the court, but it's not impossible.
On top of that, though, there are federal laws related to defamation that Trump could harm. For years we've talked about the importance of anti-SLAPP laws, which allow people sued for defamation, where it's clearly designed to just shut them up, to get those lawsuits tossed quickly and (often) to get their legal fees paid for. People who file SLAPP (Strategic Lawsuits Against Public Participation) hate these laws, and Trump appears to be a serial SLAPP filer. And, as we've been discussing, there's an ongoing push for a federal anti-SLAPP law that may have some real momentum. Yet, if that law actually passes Congress under a President Trump, it seems pretty obvious that it will be vetoed.
So, yes, it's easy to just mock Trump as clueless on this particular subject, and to note that it's not nearly as easy as he seems to think to just "open up" libel laws. But don't be fooled: if he were to become President, rather than "bringing free speech back," he will have plenty of power to create a serious chill on free speech in this country.
Apple didn't need to reply until tomorrow, but has now released its Motion to Vacate the magistrate judge's order from last week, compelling Apple to create a new operating system that undermines a couple of key security features, so that the FBI could then brute force the passcode on Syed Farook's work iPhone. It's clearly a bit of a rush job as there are a few typos (and things like incorrect page numbers in the table of contents). However, it's not too surprising to see the crux of Apple's argument. In summary it's:
The 1789 All Writs Act doesn't apply at all to this situation for a whole long list of reasons that most of this filing will explain.
Even if it does, the order is an unconstitutional violation of the First Amendment (freedom of expression) and the Fifth Amendment (due process).
I really do recommend reading the 65 page filing (it goes fast!). But on the assumption that you have more of a life than we do, let's dig in and detail what Apple's argument is. The brief is quite well written (other than the typos) in making the issues pretty clear:
This is not a case about one isolated iPhone. Rather, this case is about the
Department of Justice and the FBI seeking through the courts a dangerous power that
Congress and the American people have withheld: the ability to force companies like
Apple to undermine the basic security and privacy interests of hundreds of millions of
individuals around the globe. The government demands that Apple create a back door
to defeat the encryption on the iPhone, making its users’ most confidential and
personal information vulnerable to hackers, identity thieves, hostile foreign agents, and
unwarranted government surveillance. The All Writs Act, first enacted in 1789 and on
which the government bases its entire case, “does not give the district court a roving
commission” to conscript and commandeer Apple in this manner. Plum Creek Lumber
Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). In fact, no court has ever
authorized what the government now seeks, no law supports such unlimited and
sweeping use of the judicial process, and the Constitution forbids it.
The motion also notes the importance of strong encryption in keeping people safe and secure:
Since the dawn of the computer age, there have been malicious people dedicated
to breaching security and stealing stored personal information. Indeed, the government
itself falls victim to hackers, cyber-criminals, and foreign agents on a regular basis,
most famously when foreign hackers breached Office of Personnel Management
databases and gained access to personnel records, affecting over 22 million current and
former federal workers and family members. In the face of this daily siege, Apple is
dedicated to enhancing the security of its devices, so that when customers use an
iPhone, they can feel confident that their most private personal information—financial
records and credit card information, health information, location data, calendars,
personal and political beliefs, family photographs, information about their children—will be safe and secure. To this end, Apple uses encryption to protect its customers
from cyber-attack and works hard to improve security with every software release
because the threats are becoming more frequent and sophisticated. Beginning with
iOS 8, Apple added additional security features that incorporate the passcode into the
encryption system. It is these protections that the government now seeks to roll back
by judicial decree.
And the filing makes it clear that the government is lying in claiming that this is all just about this phone:
The government says: “Just this once” and “Just this phone.” But the
government knows those statements are not true; indeed the government has filed
multiple other applications for similar orders, some of which are pending in other
courts.2 And as news of this Court’s order broke last week, state and local officials
publicly declared their intent to use the proposed operating system to open hundreds of
other seized devices—in cases having nothing to do with terrorism. If this order is
permitted to stand, it will only be a matter of days before some other prosecutor, in
some other important case, before some other judge, seeks a similar order using this
case as precedent. Once the floodgates open, they cannot be closed, and the device
security that Apple has worked so tirelessly to achieve will be unwound without so
much as a congressional vote. As Tim Cook, Apple’s CEO, recently noted: “Once
created, the technique could be used over and over again, on any number of devices.
In the physical world, it would be the equivalent of a master key, capable of opening
hundreds of millions of locks—from restaurants and banks to stores and homes. No
reasonable person would find that acceptable.”
There's a footnote in the middle of that which points to Manhattan DA Cyrus Vance already talking about why he supports the FBI, and how he has 155 to 160 phones that he wants to force Apple to help unlock.
Apple also details how accepting the government's interpretation of the All Writs Act here could easily extend in absolutely crazy ways:
Finally, given the government’s boundless interpretation of the All Writs Act, it
is hard to conceive of any limits on the orders the government could obtain in the
future. For example, if Apple can be forced to write code in this case to bypass
security features and create new accessibility, what is to stop the government from
demanding that Apple write code to turn on the microphone in aid of government
surveillance, activate the video camera, surreptitiously record conversations, or turn on
location services to track the phone’s user? Nothing.
Apple also doesn't pull any punches on how the FBI itself messed things up:
Unfortunately, the FBI, without consulting Apple or reviewing its public
guidance regarding iOS, changed the iCloud password associated with one of the
attacker’s accounts, foreclosing the possibility of the phone initiating an automatic
iCloud back-up of its data to a known Wi-Fi network... which could have obviated the need
to unlock the phone and thus for the extraordinary order the government now seeks.21
Had the FBI consulted Apple first, this litigation may not have been necessary.
Apple's filing also does a good job debunking the DOJ's ridiculous "this is no burden, because it's just software and Apple writes software" argument:
The compromised operating system that the government demands would require
significant resources and effort to develop. Although it is difficult to estimate, because
it has never been done before, the design, creation, validation, and deployment of the
software likely would necessitate six to ten Apple engineers and employees dedicating
a very substantial portion of their time for a minimum of two weeks, and likely as
many as four weeks.... Members of the team would
include engineers from Apple’s core operating system group, a quality assurance
engineer, a project manager, and either a document writer or a tool writer....
No operating system currently exists that can accomplish what the government
wants, and any effort to create one will require that Apple write new code, not just
disable existing code functionality.... Rather, Apple will need to design and
implement untested functionality in order to allow the capability to enter passcodes
into the device electronically in the manner that the government describes.... In
addition, Apple would need to either develop and prepare detailed documentation for
the above protocol to enable the FBI to build a brute-force tool that is able to interface
with the device to input passcode attempts, or design, develop and prepare
documentation for such a tool itself.... Further, if the tool is utilized remotely
(rather than at a secure Apple facility), Apple will also have to develop procedures to
encrypt, validate, and input into the device communications from the FBI.... This
entire development process would need to be logged and recorded in case Apple’s
methodology is ever questioned, for example in court by a defense lawyer for anyone
charged in relation to the crime....
Once created, the operating system would need to go through Apple’s quality
assurance and security testing process.... Apple’s software ecosystem is
incredibly complicated, and changing one feature of an operating system often has
ancillary or unanticipated consequences.... Thus, quality assurance and
security testing would require that the new operating system be tested on multiple devices and validated before being deployed.... Apple would have to undertake
additional testing efforts to confirm and validate that running this newly developed
operating system to bypass the device’s security features will not inadvertently destroy
or alter any user data.... To the extent problems are identified (which is almost
always the case), solutions would need to be developed and re-coded, and testing
would begin anew.... As with the development process, the entire quality
assurance and security testing process would need to be logged, recorded, and
preserved.... Once the new custom operating system is created and validated, it
would need to be deployed on to the subject device, which would need to be done at an
Apple facility.... And if the new operating system has to be destroyed and
recreated each time a new order is issued, the burden will multiply.
From there we dig into the meat of the filing: that the All Writs Act doesn't apply.
The All Writs Act (or the “Act”) does not provide the judiciary with the
boundless and unbridled power the government asks this Court to exercise. The Act is
intended to enable the federal courts to fill in gaps in the law so they can exercise the
authority they already possess by virtue of the express powers granted to them by the
Constitution and Congress; it does not grant the courts free-wheeling authority to
change the substantive law, resolve policy disputes, or exercise new powers that
Congress has not afforded them. Accordingly, the Ninth Circuit has squarely rejected
the notion that “the district court has such wide-ranging inherent powers that it can
impose a duty on a private party when Congress has failed to impose one. To so rule
would be to usurp the legislative function and to improperly extend the limited federal
court jurisdiction.”
Congress has never authorized judges to compel innocent third parties to
provide decryption services to the FBI. Indeed, Congress has expressly withheld that
authority in other contexts, and this issue is currently the subject of a raging national
policy debate among members of Congress, the President, the FBI Director, and state
and local prosecutors. Moreover, federal courts themselves have never recognized an
inherent authority to order non-parties to become de facto government agents in
ongoing criminal investigations. Because the Order is not grounded in any duly
enacted rule or statute, and goes well beyond the very limited powers afforded by
Article III of the Constitution and the All Writs Act, it must be vacated.
In short, Apple is leaning heavily on the idea that CALEA pre-empts the All Writs Act here, and that CALEA explicitly says that companies can't be forced into helping to decrypt encrypted content. Beyond that, Apple is claiming that it's "too far removed" from the case for the All Writs Act to apply and mocks the idea (put forth by the DOJ) that because Apple licenses its software instead of selling it, that makes it okay:
Apple is no more connected to this phone than General Motors is to a
company car used by a fraudster on his daily commute. Moreover, that Apple’s
software is “licensed, not sold,”..., is “a total red herring,” as Judge
Orenstein already concluded.... A licensing
agreement no more connects Apple to the underlying events than a sale. The license
does not permit Apple to invade or control the private data of its customers. It merely
limits customers’ use and redistribution of Apple’s software. Indeed, the government’s
position has no limits and, if accepted, would eviscerate the “remoteness” factor
entirely, as any company that offers products or services to consumers could be
conscripted to assist with an investigation, no matter how attenuated their connection
to the criminal activity. This is not, and never has been, the law.
From there, Apple attacks the argument that there is no undue burden on Apple if it's forced to build this system, which Apple calls GovtOS. It starts out by noting that the idea that Apple can just create the software for this one phone and delete it appears nonsensical when put in context:
Moreover, the government’s flawed suggestion to delete the program and erase
every trace of the activity would not lessen the burden, it would actually increase it
since there are hundreds of demands to create and utilize the software waiting in the
wings..... If Apple creates new software to open a back door, other federal
and state prosecutors—and other governments and agencies—will repeatedly seek
orders compelling Apple to use the software to open the back door for tens of
thousands of iPhones. Indeed, Manhattan District Attorney Cyrus Vance, Jr., has made
clear that the federal and state governments want access to every phone in a criminal
investigation.... [Charlie Rose, Television Interview of Cyrus Vance (Feb. 18, 2016)]
(Vance stating “absolutely” that he “want[s] access to all those phones that [he thinks]
are crucial in a criminal proceeding”). This enormously intrusive burden—building
everything up and tearing it down for each demand by law enforcement—lacks any
support in the cases relied on by the government, nor do such cases exist.
The alternative—keeping and maintaining the compromised operating system
and everything related to it—imposes a different but no less significant burden, i.e.,
forcing Apple to take on the task of unfailingly securing against disclosure or
misappropriation the development and testing environments, equipment, codebase,
documentation, and any other materials relating to the compromised operating system.... Given the millions of iPhones in use and the value of the data on them,
criminals, terrorists, and hackers will no doubt view the code as a major prize and can
be expected to go to considerable lengths to steal it, risking the security, safety, and
privacy of customers whose lives are chronicled on their phones. Indeed, as the
Supreme Court has recognized, “[t]he term ‘cell phone’ is itself misleading shorthand;
. . . these devices are in fact minicomputers” that “could just as easily be called
cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums,
televisions, maps, or newspapers.”...By forcing Apple to write code to compromise its encryption defenses, the
Order would impose substantial burdens not just on Apple, but on the public at large.
And in the meantime, nimble and technologically savvy criminals will continue to use
other encryption technologies, while the law-abiding public endures these threats to
their security and personal liberties—an especially perverse form of unilateral
disarmament in the war on terror and crime.
That last point is key. Criminals will still use other forms of encryption, while forcing Apple to do this harms everyone else by putting them more at risk.
Here Apple goes even deeper in questioning what are the limits to the All Writs Act:
For example, under the
same legal theories advocated by the government here, the government could argue
that it should be permitted to force citizens to do all manner of things “necessary” to
assist it in enforcing the laws, like compelling a pharmaceutical company against its
will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully
issued death warrant, or requiring a journalist to plant a false story in order to help
lure out a fugitive, or forcing a software company to insert malicious code in its autoupdate
process that makes it easier for the government to conduct court-ordered
surveillance.
Next, Apple calls bullshit on the DOJ's claim that it absolutely needs Apple's help here. First, the FBI messed things up with the whole resetting iCloud password thing, and then what about the NSA? Why can't the NSA just hack in? That's what the following is saying in a more legalistic way:
... the government has failed to demonstrate that the requested
order was absolutely necessary to effectuate the search warrant, including that it
exhausted all other avenues for recovering information. Indeed, the FBI foreclosed
one such avenue when, without consulting Apple or reviewing its public guidance
regarding iOS, the government changed the iCloud password associated with an
attacker’s account, thereby preventing the phone from initiating an automatic iCloud back-up.... Moreover, the government has not made any showing that it
sought or received technical assistance from other federal agencies with expertise in
digital forensics, which assistance might obviate the need to conscript Apple to create
the back door it now seeks. See... (Judge Orenstein asking the government “to make a representation for
purposes of the All Writs Act” as to whether the “entire Government,” including the
“intelligence community,” did or did not have the capability to decrypt an iPhone, and
the government responding that “federal prosecutors don’t have an obligation to
consult the intelligence community in order to investigate crime”).
From there, we move onto the Constitutional arguments, which the court might not even address if it decides the All Writs Act doesn't apply. But, here, Apple starts with the First Amendment concerns of "compelled" speech.
Under well-settled law, computer code is treated as speech within the meaning
of the First Amendment.... The Supreme Court has made clear that where, as here, the government seeks to
compel speech, such action triggers First Amendment protections..... Compelled speech is a content-based restriction subject to exacting
scrutiny... and so may only be upheld if it is narrowly tailored to obtain a compelling state interest....
The government cannot meet this standard here. Apple does not question the
government’s legitimate and worthy interest in investigating and prosecuting terrorists,
but here the government has produced nothing more than speculation that this iPhone
might contain potentially relevant information... It is well known that terrorists and other criminals use highly sophisticated
encryption techniques and readily available software applications, making it likely that
any information on the phone lies behind several other layers of non-Apple encryption....
This argument feels a bit weakly supported. Then there's the Fifth Amendment argument, concerning due process:
In addition to violating the First Amendment, the government’s requested order,
by conscripting a private party with an extraordinarily attenuated connection to the
crime to do the government’s bidding in a way that is statutorily unauthorized, highly
burdensome, and contrary to the party’s core principles, violates Apple’s substantive
due process right to be free from “‘arbitrary deprivation of [its] liberty by
government.’”
Again, this feels a bit weakly developed, but not surprisingly so. Apple is betting heavily that its main argument, concerning the All Writs Act not applying, will win the day (which seems to have a strong likelihood of being true). The Constitutional arguments are just being thrown in there so that they're in the case at this stage, and can then be raised on appeal, should it get to that level.
I imagine the DOJ will respond to this before long as well, so stay tuned (we certainly will).
The operator of the Village Cinema is suing the Idaho State Police for threatening to revoke the theater’s liquor license for serving alcohol while showing the R-rated movie “Fifty Shades of Grey” last February.
Why would that even matter? Because Idaho has a law in place which ties liquor regulation to a bunch of sexual activity, most likely meant to keep booze sales out of strip clubs and/or porno theaters.
Idaho law prohibits places licensed to serve alcohol from showing movies that depict “acts or simulated acts of sexual intercourse” or “any person being touched or fondled” in areas including the breast and buttocks.
Two state police officers bought alcoholic beverages and tickets to "Fifty Shades of Grey." They also took copious amounts of notes, so if you'd like to see the "highlights" of the film without having to suffer through all of it, skip to page 28 of the filing. That's the Idaho State Police's criminal complaint and it contains a detailed description of every sex scene in the film.
The theater is allowed to sell alcohol to attendees, who are then directed to "VIP" areas of the theater, cordoned off from non-drinkers. The only stipulation is that it can't sell alcohol to viewers with tickets to movies where "simulated sexual acts" might be depicted. As the lawsuit points out, the actions of the Idaho State Police -- which threatened to pull its liquor license -- have First Amendment implications.
Idaho Code § 23-614 purports to authorize the Director of the Idaho State Police to punish the owner of a licensed movie theater by suspending or revoking his or her liquor license, or by imposing a fine, based on the content of movies that the owner decides to show.
Idaho Code § 23-614 purports to authorize the Director of the Idaho State Police to suspend or revoke a liquor license, or impose a fine upon the licensee, based on the content of movies that are not legally obscene and that have artistic merit.
Accordingly, Idaho Code § 23-614 is a content-based restriction on speech that is prohibited by the First Amendment to the United States Constitution, as applied to non-obscene movies.
The law itself appears to be unconstitutional. Certainly, the enforcement of it in this fashion is.
The cinema’s lawyer, Jeremy Chou, cites a 9th U.S. Circuit Court of Appeals decision that said it had been “clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be permitted under the First Amendment.”
But that's what's happening here. As the theater points out, plenty of other R-rated films contain depictions of sexual acts. It lists several other Academy Award-nominated films that were screened during the same year -- none of which received the same attention from law enforcement "Fifty Shades of Grey" did.
a. “American Sniper” b. “The Grand Budapest Hotel” c. “12 Years a Slave” d. “Dallas Buyers Club” e. “The Wolf of Wall Street” f. “American Hustle” g. “Les Misérables” h. “Silver Linings Playbook”
The only exception was "The Wolf of Wall Street." Apparently, law enforcement received a "tip" that alcohol would be served to viewers of the film. Officers informed the theater that serving alcohol would violate the law and the theater made those showings alcohol-free.
The law forces theater owners to either guess what sort of simulated sexual acts will fly under state police radar or simply ban alcohol consumption at a majority of its screenings. Rather than play this broken game of chance with local law enforcement, the theater is seeking to have the law struck down as unconstitutional. It notes that the statute has had a detrimental effect on its income and notes that it makes it far too easy for alcohol-free competitors to send law enforcement out to hassle staff and supervisors by phoning in "tips" any time a new title appears on the marquee.
Beyond all of that, there's the issue of law enforcement resources. Is this the best way to spend taxpayer money? Playing gotcha with a local theater showing MPAA-approved films that are clearly protected expression? Even the police department's criminal complaint states more than one employee informed undercover "detectives" they could not drink alcohol while watching "Fifty Shades." But because one server brought them drinks before the film started, the agency decided to go after the theater's liquor license. It's the sort of effort that puts the "petty" back into "petty criminal offense." It's selective enforcement that does little more than turn the government into everyone's prudish aunt, wagging a finger at booze consumption, sexual activity or any combination of the two.
A former cop is trying to legislate some First Amendment-violating protection for his blue-clad brothers. Everyone's carrying a camera these days and Arizona Senator John Kavanaugh wants them to be as far away as possible from police officers performing their public duties. Ken White (aka Popehat) summarizes the proposed legislation for FaultLines.
IF THE PERSON MAKING THE VIDEO RECORDING DOES NOT HAVE THE PERMISSION OF A LAW ENFORCEMENT OFFICER AND IS WITHIN TWENTY FEET OF WHERE THE LAW ENFORCEMENT ACTIVITY IS OCCURRING.
If it’s on private property where you have a right to be — say, your house — you can record the cop from the next room, unless of course the cop says you can’t.
IF THE LAW ENFORCEMENT ACTIVITY IS OCCURRING IN AN ENCLOSED STRUCTURE THAT IS ON PRIVATE PROPERTY, A PERSON WHO IS AUTHORIZED TO BE ON THE PRIVATE PROPERTY MAY MAKE A VIDEO RECORDING OF THE ACTIVITY FROM AN ADJACENT ROOM OR AREA THAT IS LESS THAN TWENTY FEET AWAY FROM WHERE THE ACTIVITY IS OCCURRING, UNLESS A LAW ENFORCEMENT OFFICER DETERMINES THAT THE PERSON IS INTERFERING IN THE LAW ENFORCEMENT ACTIVITY OR THAT IT IS NOT SAFE TO BE IN THE AREA AND ORDERS THE PERSON TO STOP RECORDING OR TO LEAVE THE AREA.
Taking video from 19 feet away is a petty offense, unless the cop tells you to piss off, at which point it becomes a misdemeanor if you don’t.
Having learned nothing from Texas legislator Jason Villalba's similar attempt to create a footage-free buffer zone for police work, Kavanaugh is headed down the same path towards ridicule and disappointment. The only difference is that Arizona citizens would be "allowed" five feet closer (20', rather than 25') to their public servants.
Kavanaugh, as White points out, is a former police officer. This explains his desire to take the "protection" out of "protected speech" and hand it over to law enforcement. Officers will then be free to guesstimate the appropriate distance for filming and enforce the new law accordingly.
Kavanaugh's latest effort follows his apoplectic defense of a bill that would shield officers involved in shootings from any sort of public disclosure for at least 60 days. Last year, he claimed the US was full of "lunatics and zealots" seeking to "assassinate" police officers, thus necessitating the conversion of transparency and accountability into an opaque shield for excessive force and misconduct.
The legislator's rationale for his boneheaded, unconstitutional legislation traces all the way back to his days as a cop, when an arrest didn't go exactly as planned.
Senator Kavanaugh explained to U.S. News and World Report that this is all Wilson Pickett’s fault.
"In the early 1970s, Kavanagh says, he arrested a bandmate of the popular “Mustang Sally” singer at John F. Kennedy International Airport. He had the man against a wall after finding syringes in a clam-shell jewelry case when Pickett approached and politely asked, “Is this gonna take long?” he recalls.
The next day, the ex-Port Authority cop says, he was told the arrestee tossed a package of heroin behind a television as he looked away."
As I recall Yosemite Sam used to fall for that “hey look over there” routine a fair amount as well.
Yet Senator Kavanagh didn’t offer a bill prohibiting musicians, or any other class of people, from approaching an officer in the course of a detention or arrest. He aimed at folks recording cops.
The omnipresence of cameras is obviously disconcerting for officers who prefer to do their work either unobserved or witnessed solely by unreliable eyeballs. Existing laws can be used to arrest those who truly interfere with police business, but someone roaming the periphery with an iPhone is only a distraction if the officer allows it to be a distraction. Giving them the power to arrest photographers only ensures cops will be more distracted than ever. And while they're approaching the person standing 15 feet away recording the arrest, the suspect will have even more opportunities to discard evidence than the guy in the Wilson Pickett case ever did. Of course, these "distracted" arrests -- accompanied by descriptions of the evidence that got away -- will be offered up as justification for Kavanaugh's First Amendment-trampling.
In both of these cases where law enforcement sympathy has trumped logic during the bill-crafting process, no one seems to have taken into account the other photography equipment everyone seems to have: CCTV. In recent high-profile shootings (Laquan McDonald, Fridoon Nehad), this technology has been the silent, unseen witness that has produced evidence that contradicts police reports. How does the 20-foot rule work in these situations? Arguably, a person does control the camera, even if only to collect footage passively. Would Kavanaugh have these cameras disabled or their footage destroyed if they "intrude" on the crime scene?
No matter how it's spun, this is nothing more than a former cop trying to delay the inevitable.
Why do legislators like Kavanagh keep trying this nonsense? They do so because their constituency is cops, and people who think that cops should be obeyed without question. And cops are nervous. Disturbing videotapes of police misconduct are no longer a rare exception, as in the Rodney King era. With a smartphone-obsessed populace, they’re an almost daily occurrence.
At this point, it can't be stopped. It can't even be contained. A roaming 20-foot "halo" around cops won't keep their misdeeds from being recorded. And it's highly unlikely a judge would be sympathetic to the destruction of recorded footage as the result of misdemeanor arrest. As White points out, it's not as though the punishment of bad cops has risen in correlation to the amount of available footage. It's still the exception for an officer to be severely punished, rather than the rule. But that too will change and that's what cops -- and Kavanaugh -- are afraid of.
In a move that seems pretty clearly designed to piss off journalists (but will likely backfire seriously), South Carolina State Rep. Mike Pitts, has introduced a bill to "register journalists" supposedly to make a "point" about gun control. The bill is, laughably, called South Carolina Responsible Journalism Registry Law which would "establish requirements for persons before working as a journalist for a media outlet and for media outlets before hiring a journalist. It would fine people for conducting journalism without registration or for hiring a "journalist" not on the registry.
From the details proposed so far, it appears that Pitts either has never heard of citizen journalists, or doesn't think they should be allowed to exist. Instead, only "approved" journalists will be allowed. And to be approved, you have to submit to "a criminal record background check, an affidavit from the media outlet attesting to the applicant's journalistic competence, and an application fee in an amount determined by the office." Reporters would need to renew their listing every two years.
Importantly (and unconstitutionally!), the bill lists out reasons why the state might "deny, revoke or refuse to issue a registration," including if the Secretary of State determines "that the person is not competent to be a journalist."
(1) The Secretary of State's Office may deny, revoke, or refuse to issue or renew a registration if the office finds that the person:
(a) has filed an application for registration that contains a statement that is false or misleading with respect to a material fact;
(b) has failed to pay the proper application fee or any other fee or penalty imposed pursuant to this chapter; or
(c) has failed to comply with any provision of this chapter.
(2) The Secretary of State's Office shall deny, revoke, or refuse to issue or renew a registration if a media outlet has determined pursuant to Section 40-85-40 that the person is not competent to be a journalist.
So, yeah. The whole First Amendment thing guaranteeing freedom of the press? Yeah, that kinda makes this whole entire bill unconstitutional. But, Pitts, apparently, isn't too concerned about the Constitution. As for what makes you not competent to be a journalist? Apparently, it includes not being objective enough. Really!
(A) A person is not competent to be a journalist if:
(1) within the three years before submitting an application for registration, the person has been determined by a court of law to have committed:
(a) libel, slander, or invasion of privacy; or
(b) a felony if the underlying offense was committed to collect, write, or distribute news or other current information for a media outlet; or
(2) as a journalist, the person has demonstrated a reckless disregard of the basic codes and canons of professional journalism associations, including a disregard of truth, accuracy, objectivity, impartiality, fairness, and public accountability, as applicable to the acquisition of newsworthy information and its subsequent dissemination to the public.
Considering how frequently people like to throw around charges of bias towards basically any reporting they dislike, you can just imagine how well that one will go over.
And what happens if you happen to practice journalism without being on the registry? Well, then you face increasing fines and eventually imprisonment:
A person who works as a journalist without registering pursuant to Section 40-85-30(B):
(1) for a first offense, must be fined not more than twenty-five dollars;
(2) for a second offense, is guilty of a misdemeanor and must be fined not more than one hundred dollars or imprisoned not more than fifteen days, or both; and
(3) for a third or subsequent offense, is guilty of a misdemeanor and must be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.
Right. Not that this bill has any chance in hell of becoming law (or remaining law if it somehow did pass), but I think I'll be avoiding South Carolina for a while.
For what it's worth, Pitts told the Post & Courier newspaper that he was really trying to start a discussion about proposals to register gun owners. Because... reasons.
Pitts told The Post and Courier his bill is not a reaction to any news story featuring him and that he is “not a press hater.” Rather, it’s to stimulate discussion over how he sees Second Amendment rights being treated by the printed press and television news. He added that the bill is modeled directly after the “concealed weapons permitting law.”
“It strikes me as ironic that the first question is constitutionality from a press that has no problem demonizing firearms,” Pitts said. “With this statement I’m talking primarily about printed press and TV. The TV stations, the six o’clock news and the printed press has no qualms demonizing gun owners and gun ownership.”
That leaves aside some fairly big differences in the issue of gun control and a free press, but that's a debate for another website.
Even Pitts admits that he doesn't think the bill is going anywhere:
“Let’s be realistic; this is an election year,” Pitts said. “It is well into the second year and the Senate is not going to do anything this year and certainly not going to do anything controversial. So no, I don’t anticipate it going anywhere. Would I mind getting a hearing on it to further the debate and discussion? I would love to have that.”
If you squint, you can kinda sorta maybe see the logic behind the argument he's making, but it's difficult to see how he's kicking off any serious discussion of much beyond "Hey, you proposed a really stupid bill."
Last month, we were actually the first publication to report that Homeland Security had very quietly "returned" two domains that it had "seized" five years ago based entirely on totally bullshit claims from the RIAA. We focused our story on the search engine torrent-finder, but also mentioned that it appeared that DHS had returned OnSmash.com as well. As we had noted, back when the domain was first seized, OnSmash was a popular hip hop blog that many in the industry purposely sent their music to, because it was great for marketing and publicity. In fact, Kanye West had been known to promote OnSmash himself. That doesn't sound like a site "dedicated to infringement" as Homeland Security's ICE division claimed in the affidavit used to seize the website.
Four years ago, we were wondering whatever happened to OnSmash, as other sites that had gone to court over the seizures had had their domains returned -- and it was admitted that this was because the RIAA (which had told ICE about these websites) failed to provide any actual evidence. It appears the same thing happened with OnSmash, though it just took an extra four years to get the domain back, as OnSmash's operator, Kevin Hofman, chose not to take the riskier path that Dajaz1 took in going to court. But, the NY Times story about the return of OnSmash gets a quote from ICE admitting that they never had enough evidence:
When asked about the return of OnSmash and another site, Torrent-Finder.com, which was seized in the 2010 raid and also returned to its operator this fall, Matthew Bourke, a spokesman for the National Intellectual Property Rights Coordination Center of Immigration and Customs Enforcement, said that after working with the Justice Department, “it was determined there was not enough evidence to seize the websites.”
Think about that for a second. The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.
I'm gong to repeat that:
The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.
Meanwhile, the RIAA, which told the agent in charge of the investigation that these sites were nothing more than dens of infringement, is so obnoxious as to now celebrate them being returned with some bullshit line about how they now "wish to be legitimate operators":
Jonathan Lamy, a spokesman for the recording industry association, said he welcomed the return of the sites, as long as they played by the rules. “If the managers of some of these sites now seek to have the domain name returned because they wish to become legitimate operators, that’s a success,” he said.
What a load of horseshit, Lamy. These sites didn't "now seek to have the domain name returned." They asked for it back almost immediately after they were seized on false pretenses based on false information provided by the RIAA. Perhaps, instead of some bullshit about these sites suddenly wanting to play by the rules, Lamy should walk down the hall to see his colleague Carlos Linares (who is still employed by the RIAA) and ask him what was up when he lied to federal investigators, helping to shut down a popular blog, violating the site's First Amendment rights?
This is from the affidavit used to seize OnSmash:
Now, Hofman is trying to rebuild the blog, having basically lost years of momentum due to the RIAA's lies.
Mr. Hofman, whose day job is managing digital accounts for musicians, has already restarted OnSmash, but he said he was aware of the challenges he would face. The site has lost most of its momentum, and blogs — once at the forefront of online music promotion — have largely been superseded by social media. He noted one advantage: By embedding links from sites like SoundCloud and YouTube, where artists and labels post songs directly, there is no more gray area concerning the source of the music.
“The plan now,” Mr. Hofman said, “is to do my best to pick up the pieces.”
Oh yeah, insult to injury: Homeland Security made him pay $7 to get the domain back.
I'm still amazed that these stories haven't gotten more attention. Again, if the federal government seized and shut down a print magazine people would be up in arms. But they do that for a bunch of online magazines and nobody seems to care? Again, they seized the domain based on false information and kept it for five years knowing that they didn't have enough evidence to have made the seizure in the first place.
And the guy who helped at the RIAA is still employed. Has anything happened to the ICE agent, Andrew Reynolds, who wrote the affidavit? How about the magistrate judge, Margaret Nagle, who apparently had no problem signing off on the seizures of internet blogs based on faulty evidence? Apparently, she recently retired and is now acting as a mediator. You know what might have been helpful? If someone had actually been able to mediate things back in 2010 before the RIAA, Homeland Security and Judge Nagle worked together to shut down an internet news website with no justification.
I've issued some FOIA requests to Homeland Security about both OnSmash and Torrent-Finder, and so far they've said that it would be "too burdensome" to search for any emails mentioning either site. I'm hopeful that more information will be exposed on what a colossal screwup this was.
Another National Security Letter issued by the government has made its way into the public domain. While it's still likely years away from the full exposure finally granted to Nicholas Merrill of Calyx Internet Access (after 11 years!), this one may not stay covered up for the next decade.
The Maryland District Court finds the gag order issued along with the NSL constitutional, but has problems with the lack of an expiration date. But it still defers to the government's best judgment as to when it will be "safe" to disclose the contents of the letter. The difference here is that the court has the USA Freedom Act to contend with, which slightly alters the acceptable amount of secrecy.
Respondent notified the FBI that it intended to file a petition to set aside the nondisclosure provision of the NSL. Respondent opined that the nondisclosure provision may no longer be needed. Respondent also invited the Government to initiate a judicial review proceeding in lieu of Respondent's filing a petition. The Government responded by initiating the instant proceeding.
Just prior to Respondent's filing of its opposition to the petition, the laws governing NSLs were amended via the USA FREEDOM Act of 2015, Pub. L. 114-23, 129 Stat. 268.1 Accordingly, the Court wiIl conduct its judicial review under the most recent version of the relevant statutes, specifically, sections 2709 and 3511 of Title 18, United States Code.
The unnamed respondent (redacted and under seal) claims the government hasn't met the burden of justifying the ongoing gag order -- an argument it has been forced to make without any knowledge of what the government has submitted (or withheld) to justify the continued secrecy. The court, however, has viewed material supporting the government's contentions and, no surprise, found in favor of national security.
There is reason to believe that disclosure ofthe information subject to the nondisclosure requirement during the applicable time period may result in a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person.
The problem is, the "applicable time period" is completely open-ended. Even with the added stipulations of the USA Freedom Act, the government can keep this gag order in place for the next several years, provided the government periodically asserts that "danger" of the national security type is still present.
At present, the nondisclosure requirement in this case has no ending date, and the Court's review of its continued viability falls within an interim period between the effective date of the USA FREEDOM Act of 2015, which directs the Attorney General to "adopt procedures with respect to nondisclosure requirements ... to require ... review at appropriate intervals ... and termination ... if the facts no longer support nondisclosure," and the anticipated but unknown date when the Attorney General will have actually promulgated such procedures. In the absence of those governing procedures, the Court will require the Government to review every 180 days the rationale for the nondisclosure requirement's continuation. Once the Attorney General's procedures are in place, then the nondisclosure requirement will be subject to review thereunder, and this Court's mandate of review every 180 days will no longer be in force.
So, the gag order will only be looked at every six months until the Attorney General takes over, at which point it will be reviewed at "appropriate intervals." Putting this into the hands of the Attorney General seems less likely to result in a ruling in favor of disclosure than leaving it up to a more impartial court. Even with this "fix" in place, there's very little reason to expect the gag order to be lifted any time soon.
As for the unnamed respondent's First Amendment arguments, the court says these alleged violations are outweighed by the government's need for secrecy in national security investigations. Furthermore, it's suggested the respondent should be happy the government has grudgingly allowed it to report nonspecific information on requests for subscriber data.
The methods or reporting established in §1874 -- with reporting allowed in "bands" of numbers and with restriction on the period of time for which a report may be issued -- are a reasonable accommodation of an ECSP's desire for transparency and the Government's compelling interest in national security.
There's no telling who the service provider is that's challenging the gag order. One of the few details that can be sussed out from the documents no longer under seal is that the NSL likely arrived in the first three months of this year. At this point, the service provider won't be able to have the decision reviewed until summer of next year and after that, it will be in the Attorney General's hands. The encouraging sign is that the Attorney General's office has already agreed to unseal certain documents in this case, rather than keep the entire discussion hidden from the general public. Granted, the documents do little more than confirm the government's belief that the gag order should remain in place -- without providing anything more than vague national security concerns to back up that assertion.
While everyone's been focused on the big dispute over the name of the NFL team from Washington DC... and whether or not it's appropriate for the US Patent and Trademark Office to take back the team's trademark, observant trademark watchers knew that the case to watch on this issue involved a dispute over the trademark for the band "The Slants." The band, whose members are Asian Americans, sued after the USPTO rejected their attempt to trademark the name of the band, claiming that the name was a disparaging term for Asians. The key argument: is it a violation of the First Amendment for the Lanham Act (the law under which registered Federal trademarks exist) to allow the USPTO to reject trademarks for being disparaging. Specifically, Section 2(a) says that:
No trademark... shall be refused registration... unless it... Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute...
And thus, the question is whether or not this is a law regulating speech based on content, which is not allowed under the First Amendment. I've struggled with this issue in the past, originally coming down on the side of saying that it's not a First Amendment violation, because not giving someone a trademark doesn't do anything to restrict speech. In fact, I originally argued, it does the opposite. Rejecting a trademark leaves speech more open for anyone to use.
Over the past twelve months, however, after discussing the issue with a bunch of lawyers (on both sides of the issue), I've changed my mind, and I see the key point: this is still a law that is based on the content of speech, and that's problematic under the First Amendment. And, now in the case involving the Slants, court of appeals for the Federal Circuit (CAFC) has agreed. The Lanham Act's prohibition on issuing trademarks if they're disparaging is unconstitutional.
The key issue: "content-based regulations are presumptively invalid." And this is a content-based regulation.
It is beyond dispute that § 2(a) discriminates on the
basis of content in the sense that it “applies to particular
speech because of the topic discussed.”... Section 2(a) prevents the registration of disparaging
marks—it cannot reasonably be argued that this is
not a content-based restriction or that it is a contentneutral
regulation of speech. And the test for disparagement—
whether a substantial composite of the referenced
group would find the mark disparaging—makes clear that
it is the nature of the message conveyed by the speech
which is being regulated. If the mark is found disparaging
by the referenced group, it is denied registration.
“Listeners’ reaction to speech is not a content-neutral
basis for regulation.”
The court rejects the claim by the government that the rejection is still "content neutral" because it would reject the same term even if it were meant to be supportive, rather than disparaging. In fact, it points out that The Slants clearly are not trying to be insulting to Asian Americans as proof of this. But the court notes that this claim is basically completely bullshit:
The government’s
starting point—that it rejects marks conveying
diametrically opposed viewpoints, if they contain the
same offensive word—is incorrect. The PTO looks at what
message the referenced group takes from the applicant’s
mark in the context of the applicant’s use, and it denies
registration only if the message received is a negative one.
Thus, an applicant can register a mark if he shows it is
perceived by the referenced group in a positive way, even
if the mark contains language that would be offensive in
another context. For example, the PTO registered the
mark DYKES ON BIKES, U.S. Reg. No. 3,323,803, after
the applicant showed the term was often enough used
with pride among the relevant population. In Squaw
Valley, the Board allowed the registration of the mark
SQUAW VALLEY in connection with one of the appliedfor
classes of goods (namely, skiing-related products), but
not in connection with a different class of goods.... Section 2(a) does not treat identical
marks the same. A mark that is viewed by a substantial
composite of the referenced group as disparaging is rejected.
It is thus the viewpoint of the message conveyed
which causes the government to burden the speech. This
form of regulation cannot reasonably be argued to be
content neutral or viewpoint neutral.
The court goes on to note other examples of rejected trademarks, noting that it clearly involves the Trademark Office deciding the nature of expressive speech and whether or not it is appropriate.
As for my original argument that rejecting a trademark restricts no speech, the court (rightly, I now believe) rejects that argument as well, basically saying that it still serves to silence certain forms of speech by choosing to remove a benefit based on the content of that speech. And that creates a burden based on content, which is not allowed under the First Amendment.
The general principle is clear: “Lawmakers may no
more silence unwanted speech by burdening its utterance
than by censoring its content.” ...
“[T]he government’s ability to impose content-based
burdens on speech raises the specter that the government
may effectively drive certain ideas or viewpoints from the
marketplace.” ... A law
may burden speech even when it does so indirectly. In
Sorrell, the challenged statute did not directly ban speech,
but rather forbade certain pharmaceutical marketing
executives from obtaining and using information that
could help them market their products more effectively.... The Court found that the state
“ha[d] burdened a form of protected expression,” while
leaving “unburdened those speakers whose messages are
in accord with its own views.” ...
Here, too, § 2(a) burdens some speakers and benefits
others. And while it is true that a trademark owner may
use its mark in commerce even without federal registration,
it has been widely recognized that federal trademark
registration bestows truly significant and financially
valuable benefits upon markholders....
Denial of these benefits creates a serious disincentive
to adopt a mark which the government may deem offensive
or disparaging.
It further notes that the vagueness in what may or may not be granted a trademark also leads to uncertainty, and "such uncertainty of speech-affecting standards has long been recognized as a First Amendment problem" that may contribute "significantly to the chilling effect on speech."
The court also rejects the argument that because granting a trademark is simply a form of government speech, there's no First Amendment issue here either. The court basically says "uh, no," and points out that under this theory, anything covered by copyright would become "government speech" immune from the First Amendment.
Various attempts to say that trademarks are just "commercial speech" and thus get less scrutiny are rejected throughout the ruling, noting that it's the expressive speech of users that would be hindered by keeping trademark law as is. And then even if it is commercial speech, the court still says this part of the Lanham Act is no good:
First, we ask whether the regulated activity is lawful
and not misleading....
Unlike many other provisions of § 2, the disparagement
provision does not address misleading, deceptive, or
unlawful marks. There is nothing illegal or misleading
about a disparaging trademark like Mr. Tam’s mark.
Next, for speech that is lawful and not misleading, a
substantial government interest must justify the regulation.... But § 2(a) immediately fails at this step.
The entire interest of the government in § 2(a) depends on
disapproval of the message. That is an insufficient interest
to pass the test of intermediate scrutiny, as the Supreme
Court made clear in Sorrell...
(law must not “seek to suppress a disfavored message”);
What about not spending taxpayer money approving racist messages? Well, the court points out, trademark registration is funded by applicants, not taxpayers, so that one fails too.
And, yes, the court admits, racist and disparaging speech may be troubling and we may not like it, but that doesn't mean the government should be in the business of deciding what is and what is not appropriate.
Moreover, at the level of generality at which the government
invokes “racial tolerance,” it is hard to see how
one could find that § 2(a) “directly and materially advanc[es]” this interest and is narrowly tailored to achieve
that objective....
Disparaging speech abounds on the Internet and in books
and songs bearing government registered copyrights. And
the PTO has granted trademark registrations of many
marks with a racially charged character.
The court concludes by noting that it's not endorsing disparaging speech -- even the name of the band in this case. It's not endorsing a trademark on "The Slants." It's just noting that §2(a) appears to be unconstitutional for violating the First Amendment.
Although we find the disparagement provision of
§ 2(a) unconstitutional, nothing we say should be viewed
as an endorsement of the mark at issue. We recognize
that invalidating this provision may lead to the wider
registration of marks that offend vulnerable communities.
Even Mr. Tam, who seeks to reappropriate the term
“slants,” may offend members of his community with his
use of the mark.... But much the same can be
(and has been) said of many decisions upholding First
Amendment protection of speech that is hurtful or worse.
Whatever our personal feelings about the mark at issue
here, or other disparaging marks, the First Amendment
forbids government regulators to deny registration because
they find the speech likely to offend others. Even
when speech “inflict[s] great pain,” our Constitution
protects it “to ensure that we do not stifle public debate.”... The First Amendment protects
Mr. Tam’s speech, and the speech of other trademark
applicants.
There is also a concurring opinion that says that beyond the fact that Section 2(a) is a violation of the First Amendment it's also a violation of the Fifth Amendment for being "unconstitutionally vague," specifically arguing that the term "may disparage" leaves things wide open in a way that is unconstitutional. There's another concurrence that includes a partial dissent, arguing that the commercial speech argument is not correct, and noting that the Trademark Office is not rejecting speech that offends the government, but rather which offends "a substantial composite of the referenced group." Finally, there are two more dissents. The first is on the First Amendment issue, saying that the USPTO's rejection of a trademark doesn't harm anyone's free expression rights. The second one argues that the government has a "substantial interest" in refusing to allow such trademarks. Feel free to read the arguments on that below.
What will be interesting is if the government seeks to appeal this to the Supreme Court (and whether or not the Supreme Court takes the case). It's possible that any Supreme Court decision may wait and depend on a ruling in the case about the Redskins trademark (which is in the 4th Circuit). If that court rules differently then it's much more likely that the Supreme Court will take on this issue to clear up the circuit split. If the 4th Circuit sides with the Redskins, then there will be two such rulings on the books in different circuits. But, for Redskins fans who don't want that name to go away, today's court ruling is a big win in your favor. And while I'll admit I'm no fan of the Redskins name, I'm now pretty firmly in the camp that agrees with the First Amendment argument that it's not the government's place to decide whether the speech is disparaging or not.
Law professor Eric Posner is no fan of the First Amendment. Never has been. Back in 2012, he argued that Americans basically need to get over the First Amendment because free speech upsets people. Earlier this year, he argued for restricting the speech of college students because students are children who don't deserve free speech. A few months ago, he also argued that the US should adopt a "right to be forgotten," because sometimes it's better to make speech disappear entirely.
It has become increasingly clear that terrorist groups such as ISIS can extend their reach to American territory via the Internet. Using their own websites, Twitter, Facebook, YouTube, and other platforms, they lure young men and women to their mission—without having to risk the capture of foreign agents on U.S. soil. The Americans ensnared in ISIS’s net in turn radicalize others, send money to ISIS, and even carry out attacks.
Never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way—and by this I mean ideas that lead directly to terrorist attacks that kill people. The novelty of this threat calls for new thinking about limits on freedom of speech.
Posner's proposal? Make it a crime to even visit a website that supports ISIS or to make any vaguely pro-ISIS statement:
But there is something we can do to protect people like Amin from being infected by the ISIS virus by propagandists, many of whom are anonymous and most of whom live in foreign countries. Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. Such a law would be directed at people like Amin: naïve people, rather than sophisticated terrorists, who are initially driven by curiosity to research ISIS on the Web.
He admits that this might interfere with actual research about ISIS, but says there can be an exemption for those with a "legitimate interest" which he defines as credentialed members of the press or those with academic associations. Of course, he then notes that, obviously, such law would violate the First Amendment. But, no problem, he says, let's just dump that... noting that prior to the 1960s, we never really took that whole First Amendment thing all that seriously anyway, and then cites a bunch of horrifically awful examples from history of the US not respecting free expression -- basically using some of the most embarrassing examples of our past to argue that we should go back to that sort of barbaric view of the world:
However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a third column with recruits. The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.
We do not currently face a national emergency comparable to a world war, but anti-propaganda laws may nonetheless be warranted because of the unique challenge posed by ISIS’s sophisticated exploitation of modern technology.
There are, of course, all sorts of problems with his argument -- not that I think he shouldn't be allowed to say it and reveal to the world his own issues. First off, it presumes, without any real evidence, that ISIS propaganda is actually effective. Multiple studies have shown this is simply not true. Nearly all recruitment into ISIS happens within established social circles, where people already know each other -- not because of ISIS tweeting out beheading videos.
Second, it's become something of a cliche to use the argument "that's exactly what ISIS/terrorists want..." but it really does seem to fit here. Scaring the living daylights out of "public intellectuals" so that they compromise the very principles on which their society is built on, seems like the pretty clear goal of terrorism. So, step on up, Eric Posner, you're posting pro-ISIS propaganda now. Under your own proposed law, you may have just committed a crime.
Third, it way overestimates the "threat" of ISIS. I am not saying that ISIS is not a legitimate threat to cause some damage, but of all the threats we've faced over the years, this is the one that we suddenly dump the First Amendment over? Really? Especially when there's no real evidence that its propaganda is effective at much beyond scaring the pants off of pretend intellectuals?
Fourth, are we really so weak minded and weak willed that people can't look at ISIS propaganda and realize "holy crap, those people are crazy" -- and that such information needs to be blocked? We've spent decades highlighting how attempts to suppress and block speech tend to do the opposite. It makes those whose expressions are blocked more resolved to speak out and also makes them feel more powerful, believing they've somehow "scared" those they're speaking against.
Fifth, why shouldn't we see what they say and then respond to it and highlight why it's barbaric and wrong? Or, at the very least, to have a better understanding of who we're dealing with. Trying to hide and stifle their speech doesn't do much in terms of better understanding the enemy.
Frankly, this really seems like Posner just looking for yet another excuse to wipe away the First Amendment. And we won't even get into the fact that he's no fan of the 4th Amendment either...
